IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No.: JR
1770/01
In the matter between
MINISTER FOR SAFETY AND SECURITY 1st
Applicant
SOUTH AFRICAN POLICE SERVICE 2nd
Applicant
NATIONAL COMMISSIONER OF THE SOUTH
AFRICAN POLICE SERVICE 3rd
Applicant
and
S. JANSEN N.O. 1st
Respondent
SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL 2nd
Respondent
CHRISTO BRITS 3rd
Respondent
_____________________________________________________________
______
JUDGMENT
_____________________________________________________________
______
REVELAS, J.
[1] This is an application for review. The applicant seeks to set aside an
award made by the first respondent (“the arbitrator”) under the
auspices of the second respondent (“the Bargaining Council” or “the
Council”).
[2] The third respondent, Mr Christo Brits (also the “third respondent”),
applied for
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the position of Director: Legal Services. He was shortlisted but not
selected. The SAPS appointed Mr Mocwaledi to that position. Mr
Brits then referred a dispute about an unfair labour practice in terms of
item 2(1)(b) of Schedule 7 of the Labour Relations Act 66 of 1995
(“the Act”). It was the case of Mr Brits (or “the third respondent”)
that the failure to promote him constituted an unfair labour practice.
[3] Prior to the shortlisting of the third respondent, Mr Mocwaledi and
two other candidates (one white and one black), interviews were held
with all persons who had applied for the post. The four shortlisted
candidates were assessed by the panel of the selection committee by
inter alia determining percentage scores for them. Mr Mocwaledi, out
of the four candidates, had the lowest percentage score and the third
respondent achieved the second highest score. Mr Mofokeng and Mr
Rooyen came first and third, respectively. Later, when the
percentages were checked, it appeared that the third responedent had
the highest score. The appointments were not made in accordance
with the percentages achieved. According to the applicants, the panel
gave preference to the two black candidates at the expense of two
white candidates in consideration for the need to achieve greater racial
diversity. Because of Mr Mocwaledi’s managerial skills, he was
preferred to Mr Mofokeng, and consequently was promoted.
[4] At the prearbitration meeting between the representatives of the
parties, it was agreed that the issue to be decided by the arbitrator was
whether the failure by the South African Police Service to promote the
third respondent amounted to
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an unfair labour practice.
[5] It was recorded in the pretrial minute by the parties that the facts in
dispute were:
“Whether the interviewing panel complied with the Nation Instruction
3/2000” and further that:
“The parties have a common understanding that the arbitrator may not make any findings with
regard to the fairness of any discrimination that may have occurred visavis [the third respondent]
on the basis of his race (my underlining) or gender”.
[6] The arbitrator found that the decision taken by the selection
committee was substantively unfair. She then awarded Mr Brits
“protective promotion” retrospectively from 01/02/2001 with full
benefits as if he was appointed in the post. She also awarded him
compensation from the date of appointment of the other candidate in
the post in dispute, to the date of the award. She also made a punitive
cost order against the applicant.
[7] The applicants main grounds for review are that:
“The Arbitrator exceeded her jurisdiction and powers. The award
accordingly offends the fundamental principle of legality;
There has been a gross irregularity in the approach adopted by the
Arbitrator who failed to apply her mind properly to the true issues
which
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she was called upon to decide (and to the relevant evidence), resulting
in a failure to ensure a proper and fair adjudication of the dispute; the
award is not rationally justifiable in relation to the reasons given and
the issues (as agreed and limited by the parties) and the material
placed before her.”
[8] Before proceeding to deal with the merits of the review, I will first
deal with the issue of joinder.
When the review application was launched the only applicant cited
was the Minister of Safety and Security. In his answering affidavit
the third respondent raised the objection that there has been a failure
to join the true employer who he contends is the South African Police
Services (SAPS) or the commissioner. An application was filed
seeking leave to join the SAPS and the National Commissioner of the
SAPS as second and third respondents respectively. This application
then became opposed. In my view there is no prejudice to be suffered
if I grant leave to join the second and third respondent to these
proceedings and accordingly such leave is given.
[9] The main thrust of the review application was that the arbitrator was
not empowered or authorized to make any finding as to the fairness or
otherwise of a decision by the employer to appoint someone other
than Mr Brits on the grounds of racial discrimination to achieve its
representivity. The pretrial “agreement” as the arbitrator termed it
expressly precluded her from making such a finding. The arbitrator
was clearly aware of this prohibitive clause in the agreement. She
refers to it in her award at paragraph XII thereof. The arbitrator
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made the observation that Mr Brits “only based his case on mainly on
[sic] the procedural aspects of the selection process”.
[10] The arbitrator found that several procedural irregularities were
committed by the selection committee. For example, that Director de
Wet’s signature did not appear on the “List of Preferred Candidates”.
He was the chairperson of the committee. The arbitrator therefore
doubted whether he was present during the final proceedings.
Director de Wet could not give an explanation for the absence of his
signature, but he testified that he was the first person to address the
selection panel followed by Commissioner Pienaar during the final
discussions. There is no attempt to demonstrate that these two
persons were lying, which the arbitrator had to find if she wanted to
reject their evidence, which she in effect did
[11] Mr Mocwaledi’s references were not checked before he was
appointed, only after Mr Brits had filed his dispute. The arbitrator
rejected Director de Wet’s explanation that the background,
achievements and managerial abilities of an applicant can be tested
through questions asked during the interview. She stated that “an
applicant can easily lie”. In this regard, it must be borne in mind that
probably none of the references, including the third respondent’s were
investigated for their accuracy. In my experience this was not a fatal
flaw in the interview proceedings. I do not believe that in general, all
references given to a panel are meticulously checked to establish
whether the applicant in question had lied. Verification of references
is a precautionary step to take if the
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suspicion is aroused that the person has lied, or to shed more light on
an aspect which came to light during or after the interview. There
was no suggestion that Mr Mocwaledi had given false references or
that the third respondent’s references were not false.
[12] The arbitrator held that the miscalculation of the marks scored by the
candidates “cost the applicant [the third respondent] dearly” and that it
constituted gross misconduct . The SAPS’ argument that the
calculation errors were bona fide and in any event involved only a
marginal difference, she “rejected in total”.
[13] Apart from the “negligent miscalculations” another complaint about
the interview proceedings was, that “several direct instructions to the
chairperson of the selection committee and the members were
blatantly ignored or omitted”. The arbitrator stated that the
“subversion” of the purpose of National Instruction 3/2000 was
“clear”. She criticized the panelists for applying the National
Instruction in a discretionary way, whereas Commissioner Pienaar
gave evidence that the Instruction is an absolute minimum standard.
[14] The arbitrator also listed the incomplete record of the interview
proceedings as a further breach of the National Instruction. At the
same time she also made adverse credibility findings against the
applicants witnesses for the absence of their “voices” on the
transcript.
[15] The panel is also criticized for not adhering to the instruction in
paragraph 18(1)
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of the National Instruction that the decisions and recommendations of
the committee must be signed. She reasoned that the shortlisting
record does not exist and the tape recordings are not capable of being
signed. Therefore there was another breach of the National
Instruction. She also held that the “List of Preferred Candidates”
could hardly be construed as a record. This approach seemed overly
technical.
[16] The arbitrator severely criticized the selection committee’s failure “to
meet” and shortlist candidates. According to the arbitrator’s
understanding of the transcript, “this was done” on the same day. She
then asked rhetorically: “...by whom and when was the shortlisting
done? Where is the record(s) of such a meeting(s)?”. She finds in
this regard that:
“Although the applicant [the third respondent] was shortlisted, such noncompliance with
National Instruction 3/2000 constitutes irregular procedures .”
[17] The arbitrator also attacked the National Instruction itself. According
to her, “the numerical score sheets with a percentage mark does not
serve the purpose of the instruction, to evaluate candidates (sic) that
fall into an ‘equally suitable bracket’. Instead the percentage mark
clearly differentiates between the candidates. No two candidates in
their interviews had the same score and therefore no one was equal.
She also stated that one is not able to deviate from existing core
functions of the posts, and therefore one has to apply less rigid but fair
measuring instruments. This last opinion of the arbitrator is
interesting. The arbitrator criticized the panelists for expressing
“opinions” and exercising
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discretions which they did not have. She found them to have failed in
their duty for not following the Direction more rigidly, as it was a
prescriptive Direction. This criticism totally contradicts her stance on
the allocation of percentages, which is also based on an opinion only
and which argues for more discretion. This bifurcated reasoning of the
arbitrator resulted in an outcome which is not rationally sustained by
the case before her, nor her terms of reference.
[18] The case for the SAPS was, that representivity was the decisive factor
in recommending Mr Mocwaledi. Director de Wet also reminded the
rest of the panel that it should be. This the arbitrator regarded as
undue influence, and an irregularity, irrespective of the fact that the
preamble to the National Direction emphasizes the need for
transformation.
[19] Commissioner Linda Pienaar believed that although the third
respondent was the best candidate, she recommended Mr Mocwaledi.
She testified that a five percent difference between the two candidates
would render the candidates in the same bracket as “equally suitable”.
This evidence the arbitrator labeled as commissioner Pienaar’s
opinion and “not an instruction as per the National Instruction 3/2000,
which is applicable to this case”.
[20] During the interviews Director de Wet stated that the Employment
equality goal for the year 2000 was a “50/50 split” on all levels,
including that of director and to that extent, the goal had been
reached. He went on to say:
“ ...but bear in mind that for the end of the year it ought to be a 40/60
split. So
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for 60/40 we’ll have to move further down the line. We do have only
this one director post on this current round but there will be two other
vacant director posts within the next round of advertisement. So taken
that into consideration, we have to move quite a while. Our concern
is as we said yesterday, is gender representivity commissioner, only
one out of twenty three is female”.
[21] The arbitrator quoted the above passage in her award and held that
since the goal for 2000 had already been achieved at the time of the
interview, the “40/60 split target” should not have been taken into
consideration. She found that:
“The endeavours of the employer about the fact that representivity
should never have been involved during this particular appointment. I
have to view the argument of the employer with suspicion as this case
was also not arbitrated on the principle of discriminaton”.
[22] She found that the committee failed to “test” the ability of the
candidates in relation to the requirements of the post and two of the
members including the chairperson were not “knowledgeable” with
the procedures and that the committee members failed to apply their
minds during the selection process.
[23] All the regularities listed by the arbitrator, according to her, caused
the eventual decision to be unfair. She also found the application of
representivity as a reason for Mr Mocwaledi’s appointment to be
mala fide and stated further:
“The least an employee can expect from the employer is to follow its
own procedures. The errors and omissions can be regarded as the
prime cause of the
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eventual substantive unfairness of the decision taken by the selection
committee” and also held that:
“Clearly the authors of the instruction could not have intended that an
interviewing panel, irrespective of scores awarded to candidates, can
exercise their discretion”.
[24] The applicants argued that the arbitrator blurred the distinction
between substantive and procedural fairness. This contention appears
to be correct. On the strength of complaints about certain procedural
errors, such as incorrect percentage calculation (where the margin was
as low as two percent), she promoted Mr Brits to a position which was
already occupied by someone else (who was not cited as a party in the
proceedings before her) and awarded compensation. In addition, the
nature of the actual relief awarded is clearly the type of award which
is almost always associated with a finding of substantive unfairness.
[25] The arbitrator was not in a position to ignore the fact that the
substantive fairness issue was directly linked to the application, by the
SAPS, of its own affirmative action policies, which the SAPS put
forward, throughout, to justify that there was indeed permissable
discrimination between the candidates. Mr Mofokeng and Mr
Mocwaledi were given preference over the third respondent, not
withstanding percentage scores, specifically in order to achieve
greater representivity. The arbitrator cloaked the substantive issue in
a whole host of procedural findings about breaches of procedure. This
is borne out by her
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award. On the basis of her findings on several alleged irregularities,
she gave an award which is completely disproportionate to the nature
of the procedural shortcomings of the interview proceedings.
[26] The arbitrator was not entitled to ignore the fact that the applicant, and
therefore the panelists, had the discretion to discriminate between
candidates in order to achieve greater representivity, in any posts,
including that for Director: Legal Services. The fact that the target
had been met did not mean that the applicant was precluded from
seeking to improve on the target which was a minimum. The
arbitrator’s finding in this regard is in essence a finding as to the
fairness or otherwise of a decision by an employer to appoint someone
other than the third respondent on the grounds of race discrimination.
Her terms of reference expressly precluded her from doing this.
[27] Before reaching the conclusion that the third respondent should be
promoted, she must have considered whether there was a causal
connection between the unfair conduct and the failure to promote him.
This would have involved an assessment of the substantive basis of
his promotion. She therefore exceeded her powers and jurisdiction by
deciding the dispute not merely on procedural grounds but on the very
substantial ground which was excluded from her scope of powers.
She made a specific finding that the representivity principle should
never have been invoked.
[28] She exceeded her jurisdiction because she was empowered only to
determine a
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dispute concerning an alleged unfair labour practice under Item 2 of
Schedule 7 tot he Act which still applied at the relevant time. Such a
residual unfair labour practice could not encompass a dispute which
had as its basis an allegation of unfair discrimination. Such disputes
are reserved to be determined by the Labour Court and not by the
CCMA or a Bargaining Council. The arbitrator with respect,
exceeded and misconceived her powers and the issues she had to
decide. Even if I am wrong in this regard, the promotion and double
compensation awarded, and the prejudice to Mr Mocwaledi was not
appropriate relief, given the nature of the procedural defects she found
to have existed. On this basis alone the award should be set aside.
[29] The award issued by the first respondent dated 7 October 2001 under
case number PSSS 589 is therefore set aside and the dispute is to be
referred back to the Council to be arbitrated afresh before an
arbitrator other than the first respondent.
[30] The third respondent is to pay the applicant’s costs.
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E. REVELAS
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On behalf of the Applicant: Adv. Paul Kennedy SC
Instructed by the State Attorney
On behalf of the Third Respondent: Adv J. Nortje
Instructed by Moodie and Robbertson
Date of hearing: 6 February 2003
Date of Judgement: 12 May 2003